Salford City Council (19 002 107)

Category : Planning > Planning applications

Decision : Upheld

Decision date : 09 Oct 2019

The Ombudsman's final decision:

Summary: Mr X complains about the Council’s decision to grant planning permission for a high wall along a driveway. He considers the Council’s decision compromises highway safety. The Ombudsman finds no fault in the Council’s decision making process but finds fault in its handling of Mr X’s complaints. The Ombudsman recommends the Council provides an apology, pays Mr X for his time and trouble and takes action to prevent recurrence.

The complaint

  1. Mr X complains about the Council’s decision to grant planning permission for a high wall along a driveway. He considers the Council’s decision compromises highway safety. Mr X also complains about the Council’s handling of his complaint.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I spoke to Mr X and I reviewed documents provided by Mr X and the Council. I gave Mr X and the Council the opportunity to comment on a draft of this decision and I considered the comments provided.

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What I found

  1. A council must decide on a planning application in line with the local development plan, unless there are material considerations that suggest otherwise. Material considerations can include highway safety and previous planning decisions. A council must be able to show that it has considered material planning considerations.
  2. Planning officers make most decisions but a council may refer others to a planning committee.

Planning committee procedure

  1. The Council publishes its rules of procedure (standing orders) within its Constitution (2017) available online.

Council complaints process

  1. The Council publishes it complaints procedure on its website. This sets out a two stage process.
  2. At stage one the Council aims to respond within ten working days. If it cannot do so it well let the complainant know and keep them updated on progress.
  3. If a person is unhappy with the stage one response they can ask the Council to consider the complaint at stage two. It will aim to respond within ten working days. If it cannot do it will let the complainant know and keep them updated.
  4. If a person remains unhappy they can contact the Ombudsman.

What happened

  1. A property owner made a retrospective planning application to increase the height of a boundary wall to 1.8m. Previously there was a low wall in place topped by a hedge up to 2m high.
  2. The Council’s Highways department commented on the application. It noted an increase in wall height would usually result in some loss of visibility. But in this case there was no material difference between the old hedging and the new wall. Nonetheless, it undertook visibility splay checks and found the proposal did not compromise the visibility splay.
  3. A planning officer produced a report. I note this refers to relevant site history. The report notes Highways has no objections and summarises the key objections received from members of the public, including Mr X. The main concerns were around visibility issues caused by the wall on exiting the site. The report refers to the Council’s development plan which says it will not allow development where this will have an unacceptable impact on highway safety. The planning officer notes Highways do not consider the wall poses a safety concern, despite the objections raised. However, the officer recommends the Council refuses planning permission due to concerns the wall is out of character with the area and granting approval could make it more difficult to resist future development of higher walls.
  4. A planning committee held a meeting to consider the application. Mr X spoke at the meeting and has provided a written record of his points. I note Mr X told the planning committee the information provided by Highways on the visibility splay was incorrect. He provided his own photographs and measurements to show the visibility splay did not comply with guidance. He said the splay should be 2.4m x 43m but he has measured it as 2.4m x 16m. Mr X also said there was a gap in the previous hedge, allowing some visibility.
  5. The planning committee considered the information available. It granted planning permission with a condition on the materials used to preserve visual amenity and ensure compliance with its development plan.
  6. On 14 May 2018 Mr X complained to the Council about the unruly conduct of the planning committee members and their decision. He felt the committee did not listen to or understand his points. He maintained it should have refused the application on the grounds of highway safety. He also questioned whether the chairman was able to second a motion as he did.
  7. Mr X chased the Council for a response.
  8. The Council responded in July and apologised for its delay. I note it explained its decision on the application. It also explained the Chair was able to move and second motions under its procedures.
  9. Mr X contacted the Council again. He said it had not addressed his concern that the Council’s measurements of the visibility splay were incorrect. He felt the planning committee had ignored this during its discussions.
  10. Mr X chased the Council for a response in August and September. He then contacted his MP who wrote to the Council in December 2018.
  11. Mr X’s MP noted the Council had addressed Mr X’s concerns about the conduct of the committee meeting. However, Mr X remained unhappy with the factual basis for its decision on the application. Mr X said the decision was contrary to planning conditions attached to two planning permissions granted in 1985. A condition said the visibility splay should be 4.5m by 70m and there should not be any obstruction over 0.6m above the carriageway. Mr X measured the splay as 2.4m by 16m and the wall as 1.8m, contrary to this condition.
  12. The Council replied in January 2019. It noted Mr X disputed the measurements of the visibility splay however the most important point was there was no material difference between the hedge and the wall in terms of obstruction; the wall did not make the situation any less safe. It said the 1985 planning permissions were not relevant to the application. Further, it was too late to take action against any breach of those conditions.
  13. Mr X’s MP contacted the Council again in January. Mr X maintained the Council’s measurements were incorrect and queried why it had not adhered to the measurements referenced in 1985.
  14. The Council responded in January to confirm the assessment of Highways was correct. The 1985 position was not relevant as standards changed over time. Highways took account of the guidance applicable now, in the Manual for Streets (version 2010).
  15. Mr X complained again in April via his MP. He said the Council had delayed responding to his complaints and not addressed his questions. He said there was previously a gap in the hedge that aided visibility that Highways would not have seen. The Council had made general comments on visibility splays but not addressed his concerns. And he was unhappy it had failed to enforce planning conditions on the 1985 applications.
  16. The Council responded in April. I note it repeated its previous responses and maintained its position.
  17. In response to my enquiries the Council detailed its measurements of the visibility splay and maintained its position was correct. It said it had also revisited the site to confirm its measurements. The Council further explained the 1985 planning permissions were not relevant as they concerned access at a different junction and applied different standards.

Findings

  1. I cannot question whether the Council’s decision to grant planning permission is right or wrong simply because Mr X disagrees with it. I must consider whether there was fault in the way the decision was reached.
  2. The documents show the Council considered the application in line with its development plan and took account of highway safety. It considered Mr X’s objections and heard his views during the committee meeting. However, the Council found the wall was no less safe than the previous hedge and found the visibility splay complied with guidance. Although I note Mr X disagrees with the Council’s decision, I am satisfied the Council followed a proper decision making process.
  3. There is no independent evidence to show Mr X’s measurements of the visibility splay are correct and the Council’s wrong. However, even if the Council’s measurements were wrong, I find this would not have affected its decision on the planning application. This is because the Council considered the wall had no further impact on visibility than the previous hedge and this was key to its decision. I note Mr X also disagrees with this view, however I cannot question the Council’s judgement.
  4. The Council has explained why the 1985 planning applications were not relevant in this case. I am satisfied with the Council’s explanation. I also note a council is not obliged to check planning conditions have been complied with unless or until a complaint is made. And, it is too late for the Council to act in respect of any breach now.
  5. I note Mr X considered the planning committee unruly but there is no evidence of any fault affecting the decision making process.
  6. The Council failed to respond to Mr X’s complaints within its required timeframes and failed to keep him updated. I note the Council did not respond to Mr X’s complaint of July 2018 at all, rather it replied to his MP in January 2019. These delays amount to fault. I also consider the Council did not provide sufficient detail within its responses to address Mr X’s specific concerns. This too is fault. Mr X was put to time and trouble chasing the Council for responses to his complaints as a result.

Agreed action

  1. To remedy the injustice set out above I recommend the Council take the following actions within one month of the date of my decision:
    • Provide Mr X with a written apology for its failure to address his complaints in a timely manner;
    • Pay Mr X £100 for the time and trouble he has suffered;
    • Identify the reasons for the delay in its responses, take action to prevent recurrence and inform the Ombudsman of the actions taken.
  2. The Council has accepted my recommendations.

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Final decision

  1. I find no fault in the Council’s decision making process on the planning application but I find fault in the Council’s handling of Mr X’s complaint. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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